Wrongful Death

If an elderly parent dies because of medical malpractice but does not leave behind a surviving spouse, can any of his children, all of whom are over the age of 25, bring a wrongful death action for their pain and suffering against the negligent medical provider(s)? No. Florida’s Wrongful Death Act excepts “adult” children from bringing a claim where the death results from medical malpractice. If the death results from any other cause, such as a motor vehicle accident or a defective product, the adult children have the right to bring a claim for their pain and suffering from losing a parent. This grossly unjust exception is the topic of this blog: Florida’s Wrongful Death Act Fosters Better-Dead-Than-Alive Philosophy In Medical Malpractice Cases.

What is the statute of limitations in Florida for bringing a wrongful death lawsuit? Florida Statutes 95.11(4)(d) and 95.031(1) provide that an action for damages under Florida’s Wrongful Death Act must be commenced within two (2) years of when the last element constituting the cause of action occurs. In cases involving medical negligence, the SOL can be delayed to an extent by the “delayed discovery doctrine,” which injects the element of when a survivor knows or should know of when the last element of the cause of action has occurred.

What is the proper procedure for bringing a wrongful death lawsuit in Florida? The individual claims of each survivor under Florida’s Wrongful Death Act are brought by the Personal Representative of the decedent’s estate appointed by the court. The various claims are brought in one case, rather than in separately filed lawsuits. In most instances, the PR is a family member, who may also be a survivor under the Act, or a trusted family friend. The PR selects the attorney to represent the Estate and the survivors, although each survivor can have her or his own attorney as well.

I was over the age of 25 when my father died in a car crash. May I recover against the at-fault party for my mental pain and anguish? It depends. If your father left behind a surviving spouse, whether or not she is your mother, you may not recover non-economic damages for the loss of your father. If your father died without a surviving spouse, all of his children, no matter their ages, are eligible to be compensated for their loss. We have represented children in their sixties when their parents were not survived by a spouse, but we’ve also had to inform other children that they were not eligible for making a claim because of a surviving spouse. See this blog for a chart of who may recover for the wrongful death of a loved one.